Citation Nr: 9814672
Decision Date: 05/11/98 Archive Date: 05/27/98
DOCKET NO. 97-13 739 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to service connection for a lower back disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Associate Counsel
INTRODUCTION
The veteran had active duty from September 1988 to February
1996.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating action by the San Diego,
California Regional Office (RO) of the Department of Veterans
Affairs (VA).
In October 1996 the veteran filed a notice of disagreement
with a July 1996 rating action. He disagreed with the
denials of entitlement to service connection for mood swings,
reactive airway disease, and low back disorder, and for the
noncompensable evaluation assigned for a service-connected
left ankle disability. In a January 1997 rating action
service connection for pes planus was granted and a
noncompensable evaluation was assigned. In March 1997, the
veteran filed a notice of disagreement on that action.
The record reveals that all matters except the issue of
entitlement to service connection for a lower back disorder
were resolved. Specifically, in a March 1997 written
statement, the veteran withdrew his claim for an increased
rating for a left ankle disability; and indicated that he
would be satisfied with a 10 percent rating for pes planus,
if assigned. Also in March 1997, the veteran submitted an
appeal cancellation notification, wherein he canceled the
issue regarding service connection for reactive airway
disease; because in the interim service connection was
granted at a 10 percent rate for which the veteran stated he
was satisfied; and he canceled the issue of entitlement to
service connection for a mood disorder. In an April 1997
rating action, a 10 percent evaluation was assigned for the
veteran’s service-connected pes planus disability. In an
April 1997 notification from the RO to the veteran, the RO
noted that the grant of 10 percent was a complete grant of
benefits on appeal for the pes planus issue; no doubt
pursuant to the veteran’s earlier comments. Accordingly, the
issue on appeal is as stated on the title page of this
decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is warranted for
a low back disorder because he had documented incidents of
low back pain in service and he continues to have low back
pain currently.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not presented
evidence of a well grounded claim for entitlement to service
connection for a lower back disorder.
FINDING OF FACT
Competent evidence establishing that the veteran has a
presently existing low back disorder has not been submitted.
CONCLUSION OF LAW
The claim for service connection for a lower back disorder is
not well grounded. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service
connection connotes many factors but basically it means that
the facts, shown by evidence, establish that a particular
injury or disease resulting in disability was incurred
coincident with service in the Armed Forces.
Determinations as to service connection will be based on
review of the entire evidence of record, with due
consideration to the policy of the VA to administer the law
under a broad and liberal interpretation consistent with the
facts in each individual case. 38 C.F.R. § 3.303(a) (1997).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1997).
The threshold question that must be resolved with regard to
each claim is whether the veteran has presented evidence that
the claim is well grounded. If he has not, his appeal fails
as to that claim, and the VA is under no duty to assist him
in any further development of that claim. 38 U.S.C.A.
§ 5107(a) (West 1991). Murphy v. Derwinski, 1 Vet.App. 78
(1990). Case law provides that although a claim need not be
conclusive to be well grounded, it must be accompanied by
evidence. A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible. Dixon v. Derwinski, 3 Vet.App. 261,
262 (1992); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
One element of a well grounded claim is a presently-existing
disability stemming from the disease or injury alleged to
have begun in or been aggravated by service. Brammer v.
Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski,
2 Vet.App. 141 (1992). It has also been determined that a
well grounded claim requires (1) medical evidence of a
current disability, (2) lay or medical evidence of a disease
or injury in service, and (3) medical evidence of a link
between the current disability and the inservice injury or
disease. Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
In addition, where the determinant issue involves a question
of medical diagnosis or medical causation, competent medical
evidence to the effect that the claim is plausible or
possible is required to establish a well grounded claim.
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Lay assertions
of medical causation cannot constitute evidence to render a
claim well grounded under 38 U.S.C.A. § 5107; if no
cognizable evidence is submitted to support a claim, the
claim cannot be well grounded. Id.
The veteran’s service medical records reveal that on an Army
Reserve examination in January 1988, the veteran reported no
history of back pain. In an August 1992 physical therapy
request form, it was noted that the veteran had lumbar
tightness exacerbated by running. It was noted that there
was no radicular pain, and the physical therapy department
was asked to please assist in a back evaluation and
aggressive stretching program. Another notation indicated
that the veteran failed to schedule an appointment with the
physical therapy department within the appropriate time
period. In a later August 1992 notation regarding screening
of acute medical care, the veteran was seen for complaints of
lower back pain for the past 3 weeks. It began with sit-ups
at the gym and lifting weights at the gym. The observation
was that there was a tight lumbar musculature with no
tenderness with full lumbar range of motion without pain.
The assessment was tight lumbar musculature. In a September
1992 screening note, the veteran complained of low back pain
times one and a half months. A temporary profile was
established with no running, jumping, or marching or
prolonged standing for 5 days. In November 1993, the veteran
was seen for lower back pain for 1 year. The lower back pain
occurred with lifting, stair climbing, and with most back
movement. It was noted that the pain was non-radiating pain
and that the back hurt when he lifted and worked out. It was
noted that there were no specific injuries. At a physical
examination in January 1995, the veteran reported a history
of having lower back pain since 1990. Upon examination for
purposes of separation from service in February 1996, the
veteran reported again having a history of chronic recurrent
lower back pain for which he never sought treatment.
However, the report of medical examination reflects that the
veteran’s spine, and other musculoskeletal areas were
clinically evaluated as normal.
Following service separation, one month later, the veteran
filed a claim for service connection for multiple disorders,
including that of low back pain.
At an April 1996 VA examination, the veteran was seen for
general purposes, for a joints examination and for a spine
examination. During the joints evaluation, the veteran was
not examined for the back but the diagnosis included low back
pain, muscular, very mild. During the general examination,
it was noted that the veteran had excellent and complete
movement of his extremities in addition to excellent and
complete movement of the mid back, low back, and hips. He
did a normal straight leg raising and he did a normal duck
walk.
During the spine examination, it was noted that the veteran
had back pain. He told the examiner that the back problem
began 3 years prior with the onset of spasms. The veteran
reported that he did not recall any specific injury. He said
that he was doing a lot of lifting and he began to get back
spasms. He described that the spasms came and went and
lasted minutes to hours and then disappeared. There was
never any radiation or paresthesia, but the examiner noted
that the veteran said that he had some feeling of
“instability” of his legs and that the veteran thought that
it was a “neural problem.” The examiner stated, “however,
he has had no paresthesia, no tingling, no shooting pain, and
no radiating pain into the extremities.” The pain was from
what the veteran called muscle spasm and it was from the
lower thoracic down through the entire lumbar area to the
sacral area. In was in both sides of the paravertebral area
and in the muscles. The examiner noted that the veteran had
not had any treatment, he had not had any x-rays, and he had
not discussed “this” (presumably the claim for neurological
difficulty) with a physician. The veteran noted that he was
able to work through his pain and he learned that bending
over relieved pain and that standing straight up seemed to
aggravate the pain. It was noted that the veteran was
currently taking Doan’s pills periodically and he said that
it helped him. The veteran reported that when he did
workouts he got back pain. He also got back pain after he
ran for a half mile or so.
Physical examination of the spine revealed that there was no
postural abnormality, no fixed deformity, and that the
veteran moved perfectly freely. The examiner noted that the
veteran was able to change position from sitting to standing
and supine to sitting without any hesitation, and without any
cringing or evidence of pain. It was noted that the veteran
had no trouble getting his shoes, stocking, and trousers on
and off. The range of motion was somewhat limited. Forward
flexion was 90 degrees, backward extension was 40 degrees,
left and right lateral flexion was 40 degrees each, and left
and right lateral rotation was 70 degrees each. The examiner
noted that the only limitation was in forward flexion and
that was because of the veteran’s tight hamstrings. The
examiner stated that there was no pain with any of those
motions, but that the veteran said that he felt it
“pulling.” The examiner stated that the neurological
examination was completely normal. The patellar reflexes
were very sluggish, they were present, but they were very
sluggish. The Achilles reflexes were active and were
symmetrical. There were no abnormal reflexes. Sensation to
both pin prick and light touch was completely normal in the
two lower extremities and in the entire back, according to
the examiner. Straight leg raising in the sitting position
was to 90 degrees on either side and there was no back or leg
pain. However, in the supine position, straight leg raising
was to 60 degrees and the there was tightness in the
hamstrings. That produced some pain in the popliteal area
posteriorally, but no back pain, according to the examiner.
The bent leg raising with knee on chest position did not
produce any back pain either. Muscle power of toe extension
and knee extension was 5+ and there was no atrophy.
At that time, the veteran underwent VA x-rays of the
lumbosacral spine. The impression was that the lumbar spine
and pelvis appeared within normal limits. The record shows
that the veteran underwent several other VA examinations and
outpatient treatment which did not pertain to the issue on
appeal and will not be reported herein.
The Board has reviewed the record in its entirety.
Initially, the Board must point out that, following a review
of the record, there is no evidence of a presently existing
disability stemming from the in-service incident. See Brock
v. Brown, 10 Vet. App. 155, 160 (1997) (citing Brammer and
Caluza, both supra). That is, the medical evidence does not
include diagnoses of any current disability regarding the
back that has been characterized as residuals of a back
injury or back pathology in service. Although the post-
service medical evidence reflects assessments of low back
pain, which the veteran had documented in service, low back
pain is a symptom and not a disease entity for which service
connection can granted.
While subjective complaints of low back pain were included in
the extensive VA examination for the spine in April 1996, the
examiner described that the veteran had no abnormality or
deformity of the back; that the only limitation of motion was
in forward flexion and that was due to tight hamstrings, not
a spine problem; that there was no objective pain associated
with the range of motion movements; that while straight leg
raising produced some pain in the popliteal area, it did not
produce objective back pain; that despite the veteran’s
assertions of neurological difficulty, the neurological
examination was “completely normal”; and x-rays of the
lumbosacral spine were within normal limits. There was no
final diagnosis of back pathology listed at the spine
evaluation, and at the joints evaluation, it was noted that
the veteran had very mild muscular low back pain. This does
not amount to a diagnosis of a current disability.
Therefore, the Board finds that since the veteran has only
submitted his own unsubstantiated opinion as evidence that he
incurred residuals of a back injury and/or low back pain
coincident to service, he has not submitted evidence that
would justify a belief by a fair and impartial individual
that his claim is well grounded. Since the veteran has not
met the initial burden under 38 U.S.C.A. § 5107(a), the claim
must be denied.
ORDER
Service connection for a lower back disorder is denied.
Deborah W. Singleton
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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